*1 Administratrix, JONES, Es- Norma Lee Deceased, Pledger, tate of Zelma Mae Appellant, Administrator, PLEDGER, Sr.,

Anderson Deceased, Pledger, Estate of John Appellee. United States District of Columbia Circuit.

Argued Nov. Rehearing En Banc Petition May Denied Washing- Parker, Barrington Mr. D. George C.,

ton, A. Mr. D. with whom C., Parker, Washington, on the was D. brief, appellant. Washington, D. Shuman, Mr. Jerome Roundtree, Dovey

C., J. with whom Mrs. brief, Washington, C., D. was appellee. Judge, Before Chief Bazelon, Judge, and Senior Circuit

Pbettyman, Judge. Fahy, Circuit FAHY, Judge: Circuit of the estate

The administratrix Pledger the administra- Zelma Mae sued Pledger. John of John of the Estate tor Pledger Mae of Zelma Pledger. complaint intentionally shot his husband flicting injuries died, from which she day he took that thereafter life. The husband and his own of lim- separated and there was decree divorce, bonds of ited but the completely. had not been severed kin, it is next of wife’s heir alleged, son guardian. plaintiff for whom alleged, dependent minor, it is *2 upon corporated part in mother for and his in our as Code Section 30- custody. is to Thompson, in her The suit U.S. damages 1180; to be due recover S.Ct. 54 L.Ed. Mount minor, joy Mountjoy, D.C.App., and under the 206 A.2d 16-1201, Act, Steele, ful Death set F.Supp. D.C.Code and see § Steele v. (D.D.C.). pertinent part. important in respects forth The in infra which this Act eliminated wife’s disa The defendant answered administrator bility go far, did not so the Court held summary judgment, which and moved for Thompson, in her to enable sue her granted “a wife that husband for a tort committed him may maintain upon explained: The Court against injuries her husband for which during and, occurred coverture” there- Apart from the consideration fore, after her death can be there perpetration such of atrocious under wrongs adequate grounds affords Wrongful she Death Act because had relief under the of statutes and divorce solely husband, by of lived reason alimony, this construction [which immunity, interspousal the doctrine of would, immunity] would discard the could not in wife. be sued his time, open at the doors thought court this followed The courts to all of accusations of sorts from the terms spouse against other, bring and in- agree. pro- Act. We do The Act public complaints assault, notice vides, pertinent part: in slander, libel, alleged injuries and and * * * property Whenever the death other, or the one person against shall be or wife * * * * * * any person act exer- husband. Whether * * * would, jurisdiction and the such as pro- act cise of such would be ensued, public if death had have entitled motive welfare and do- * * * party injured, main- mestic is at least a debatable damages, question. tain an possible action and recover of such evils * * * person legislation might have well make the law- making power been liable if death not ensued hesitate to enact it. shall be liable to an action for But these and kindred considerations * * * for such and dam- legislative, such are addressed to the not the judicial, government. shall be assessed with reference branch of the injury resulting present, act interpretation to the * * * such cases like spouse only kin to the and next of law function person *. courts. ed.). (1961 617-618, D.C.Code 16-1201 § 218 U.S. at 31 S.Ct. upon Thompson, however, only involved prevailed the District relied has Court whether Married Women’s jurisdiction. abrogat- this is so notwith- Act should be construed have standing Act, the Married Women’s ed statute power wrongs independent 1. Married women shall en of contract committed contract, gage any business, marriage, during and to them before or their engaged not, fully they unmarried, whether or and business as if and as were separately upon contracts, upon judgments their sue recovered them separately may they also and to sue the re execution be as if were issued covery, security, protection unmarried; any or of their nor shall lia property, upon any torts committed ble contract made them, fully freely they upon as in her own name and her own re unmarried; sponsibility, contracts be made nor for tort committed them, they may separately presence also be sued her out of his sanction, separately contracts, participation their without his or during ed.). (1961 made before or and for D.C.Code good that would have wheth- to defenses against was not concerned with deceased. Others hold that er doctrine changed jurisdic- of action aris derives from the cause it ing in tort could be facts of the common law tion evolution light wrong, through creat judicial new decision changed person than the one ed to enable a other conditions. reasons.to Since *3 3 compensatory injured physically does to hold that the doctrine seek be stated we damages. present apply our is the case case to facts of Such the problem. child the do for harm to the attributable to we not face that wrong loss of his which resulted in the wife In husband and both mother. living in be- the ing the the husband. agree when wife sued We the view question quite cir- Wrongful arises in different Our Act such a new Death creates legal brought by right It is the cumstances. representative the It of action in next kin. of the wife after from the cause of action which derives child; death, wrongful the benefit of her minor for of the stems from cause the right pursue and it the administrator is this cause of death. The estate, legal representa the is in action the here, an action not bar- acting himself. That such is for de the tive minor. immunity an red right a husband’s re termination the of action when legal representative action becomes clear wife bears di sides the rectly upon the nature of an action under the whether it is the immunity. ful Death Act is considered. barred the no At law there was common defenses, types of are two There causing right wrongfully for one, personal one as contribu Ellenborough the Lord death another. tory negligence, opera the which invades Court, once “In a civil the decided: a tive facts in such manner defeat complained of a human could not be good. action otherwise Welch v. Da an 2 right injury of as an 132, 547, vis, 130, 410 101 N.E.2d Ill. of action exists District of Colum the 548, 28 A.L.R.2d Kaczorowski v. statute, D.C.Code, bia of our virtue 442, 663, Kalkosinski, 438, 184 A. 321 Pa. 16-1201, supra. Guaranty 1267; Deposit 104 A.L.R. Nelson, Miss. Bank & Trust Co. v. said create statute is Such administratrix, 335, 54 So.2d 476. The right derivative in nature. The cases while she be said stand in the right divide derived is respects, some shoes the deceased in right from a of action or from a cause purposes right of action. “A of action is a reme beneficiary agent Act is the action, right affording dial in redress for the here the son. benefici fringement legal right belonging to of a disability ary personal labors under no person, some definite whereas cause reason of action facts is not available defense is Such right rise to such of action.” Fielder brought on his be defeat the action Co., 375, 382, Ohio Edison St. 158 Ohio half. 855, 859, 109 N.E.2d 1365. A.L.R.2d right is not cre- Some courts hold that main Even action explained in tain next the action ated as we have derives of kin but derived from the deceased whose death is immunity act, legal death, and therefore an subject bar The reasons this action. policy Eng. Camp. 493, Bolton, would forbid award 2. 3. Public Baker v. Rep. committed wrong in of this case. the circumstances disappeared completely immunity have Wally al., Appellants, KELBERINE et given no effect. and it should situation, Justice factual an identical Supreme Schaefer, speaking INTERNATIONALE, SOCIETE ETC., In- Illinois, terhandel, Etc., al., Appellees. said: et Today can be based sole-

ly upon domestic tran- United States Court of prohibition District quility Columbia Circuit. is fostered her hus- a wife of actions Argued Dee. 1965. An based band. preservation can of marital Rehearing Petitions for En Banc and for case, pertinence Rehearing before the Division terminated, marriage has here Denied June dead, and are both husband and wife *4 the benefit action is a third Davis, supra, 410 Ill.

Wel4chv. N.E.2d at 549. action is

We conclude not barred immunity. the doctrine spirit This accords with the furthers Death Act and giving purpose. its “The statute dam resulting of death on account remedial, act of another liberally construed.” must be Co., App. Terminal Calvert v. Taxicab position has the D.C. 121. Our support this area commentators Harper James, & Torts

the law. (1956); Prosser, at 933 Torts § (3d 1964); Annot., A.L.R.2d ed. proceed- Reversed and remanded ings opinion. not inconsistent with this Judge

PRETTYMAN, Senior Circuit (concurring result): heartily support

I im- munity torts, but, respect doctrine in couple where the had a limited decree divorce and the tort murder coupled the wife with his suicide, own the doctrine has no factual rest, susbtance which to see I no reason to its effectiveness to Especially fiction. is this so in an action brought on behalf of minor child of the marriage against parent the estate destroyed his sole se- curity.